I have presented a number of talks for Legalwise Seminars in the last few years, and on Thursday week (13th March 2014) I will be doing another one for them at the InterContinental Hotel in Adelaide, which is just by the river. I get billed as
Drafting Damages and Penalty Clauses
Robert Fenwick Elliott, Barrister, Howard Zelling Chambers
The title of the talk is a bit of a misnomer, because nobody in their right mind would want to draft a penalty clause – it is of no legal effect. So I will talk about drafting liquidated damages clauses instead. And delay damages clauses as well. They are a bit of a misnomer too, at any rate in international terms. In FIDIC contracts (used all around the world) the expression “delay damages” means liquidated damages payable by a contractor to principal for inexusable delay. But here in Australia, the expression means the sums payable by a principal to a contractor for compensable delay. At bit like “thongs”, which in Australia are plastic sandals, but elsewhere are flimsy bits of ladies’ underwear. Anyway, I hope to sort it all out (not the thongs thing) on Thursday week.
This is part of a half day seminar called Contract Law: Key Clauses and Disputes, This is in turn a part of a March program that Legalwise are running. Lawyers in Adelaide have to earn CPD points to prove that they are continuing to professionally develop, and March is towards the end of the CPD year. Hence, I guess, the timing.
For some reason which is a little obsure, there is something about this area of law – liquidated damages etc – which law students doing disertations find utterly compelling. There are probably as many on this topic as every other aspect of construction law put together. It is actually an interesting area of the law, with ingredients ranging from 19th century equity to modern consumer considerations. But the purpose of this talk is not so much to dwell on interesting and difficult questions of jurisprudential theory, but rather to steer practitioners around the several drafting traps which populate this neck of the legal woods.